I was talking with a very experienced local medical malpractice attorney not too long ago about the mediation requirement for MedMal cases in DC - DC Code § 16-2821. In her experience, most mediation for MedMal cases is worthless – counsel for the parties simply call in and say that there hasn’t been discovery yet, so no way to settle. But clients who feel that they have been wronged often want some sort of acknowledgment that they have been hurt, especially medical malpractice clients. My own view is that both plaintiffs and defendants can benefit if these non-monetary goals can be met in mediation.
A recent blog post by Popehat about one of his mediations where a face-to-face mediation led to his client erupting in rage and storming out made me think a bit about what we hope to get from mediation for our clients. Litigation creates an atmosphere where otherwise reasonable people can lose their minds and be stubborn and overwhelmingly contentious.
In the medical field, where once liability reduction experts would advise doctors and hospitals to admit nothing, these experts are now ” encouraging practitioners to enter into dialogues with their patients . . . [in the hopes that] honest and open communication between the parties will diffuse the adversarial environment oftentimes resorted to in today’s litigious society.” DC Council Committee on the Judiciary Report on Bill 16-418, at 1-2 (April 28, 2006). A recent law review article by Carol Liebman reported on a couple of studies of medmal plaintiffs’ goals and found that many had primary motivations other than money. For example, 59% of the plaintiffs in one study “reported that their primary goal in suing was to get an admission of fault or responsibility [and an] additional 59% sued to ensure that the harm never occurred again.” Additional motivations reported were:
Fifty-three percent sought answers, 41% retribution, and 41% apology. Thirty-five percent named money as a secondary goal, 35% wanted an acknowledgement of harm, and 24% sought punishment. Only 18% stated that money was their primary goal and a mere 6% stated that money was their only goal. Forty-one percent did not mention money as a goal.
While plaintiffs may have a chance of satisfying these goals in mediation, in litigation these goals are “are translated, reconstituted, and coerced by lawyers to fit into legal and monetary compartments, ignoring aspects deemed irrelevant in law and ultimately translating them into money.” Carol Liebman quoting Tamara Relis, Perceptions In Litigation And Mediation: Lawyers, Defendants, Plaintiffs, And Gendered Parties 53 (2009).
I would think that anything defendants do to satisfy plaintiffs non-monetary goals will help them to achieve earlier cheaper settlements, while giving plaintiffs more of what they are actually seeking. But then what would the lawyers do?